People v. Fann
| Decision Date | 20 January 2015 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Kent FANN, Defendant. The People of the State of New York, Plaintiff, v. Robert Brisken, Defendant. |
| Court | New York Supreme Court |
Randy S. Alpert, Defense counsel to defendant Kent Fann.
Sean McNicholas, Defense counsel to defendant Robert Brisken.
These two cases have been consolidated for motions by all parties. They present the same issue to this court. Each defendant was convicted of a misdemeanor and sentenced to probation. A Violation of Probation (hereafter "VOP") was filed on each case by the Probation Department. Defense counsels on each case requested that the defendant be examined pursuant to CPL § 730.30. Both Brisken and Fann were found unfit to proceed. By statute they were ordered to be committed to the Custody of the Commissioner of Mental Hygiene. ( CPL § 730.40(1) and CPL § 730.50(1) ). The remaining question is whether, pursuant to CPL § 730.50(1)(b), the misdemeanor charges must now be dismissed. The Prosecution and the Department of Probation argue that since the finding of "unfitness" took place in a post-conviction context, the CPL § 730.50(1)(b) requirement to dismiss the misdemeanor charges does not apply. The Defense counters that CPL § 730.40 and CPL § 730.50 do require dismissal of misdemeanor charges after a finding of unfitness. The Defense cites to People v. Concepcion, 41 Misc.3d 1, 972 N.Y.S.2d 818, which extended CPL § 730.30 to post-conviction VOP hearings. This issue presented on both cases is new and has not been ruled upon by any court.
Mr. Brisken, 67 years old, was convicted of Attempted Criminal Sex Act in the Third Degree (an A misdemeanor). His original charges included felony and misdemeanor counts involving sex crimes with a 15–years old victim. He was sentenced on March 31, 2014 to six years probation after completing 52 sessions of a sex offender program. As a result of this conviction, he also had to comply with the Megan's Law statute for registration and reporting as a sex offender. (See N.Y. CLS Correc. § 168).
A VOP was filed two months later with a specification that the defendant had been arrested for Criminal Contempt in the Second Degree, by violating an order of protection with the same 15–year old victim.
The defense attorney requested a CPL § 730.30 exam. Defendant exhibited signs of mental distress before the Court. This Court ordered the examination pursuant to CPL § 730.30. During the interim, court staff inquired of the original prosecutor as to whether a Megan's Law hearing had been conducted and whether the defendant had received a sex offender designation. Neither was reflected in the court file.
The results of the CPL § 730 examination found the defendant unfit to proceed. Since Mr. Brisken's probation resulted from a misdemeanor charge, on defense motion, the court committed the defendant to the custody of the Commissioner of Mental Hygiene and dismissed the misdemeanor charges against the defendant pursuant to CPL § 730.50.
Subsequently, the original prosecutor informed the court that the Megan's Law hearing had been adjourned a number of times and had not yet been completed and no sex offender designation had been adjudicated. When the court staff apprised the prosecutor of the finding of unfitness, and the dismissal of the misdemeanor charge, the prosecutor raised the issue of whether the dismissal was in error because the examination pursuant to CPL § 730.30 was conducted in a post-conviction context. The Prosecutor argued that the dismissal statute only applied to pre-judgment cases. He requested time to file motions on this issue.
On July 1, 2104, shortly after the Brisken case, a VOP was filed against Kent Fann. The defendant was convicted of Criminal Mischief in the Fourth Degree and was sentenced to 3 years probation with a special condition to comply with a mental health program. Mr. Fann had a long history of mental health issues, including having two prior cases dismissed due to defendant's mental disease or defect.
Here, Mr. Fann was originally charged with Criminal Mischief in the Third Degree for throwing a metal garbage can at the door and window of a T–Mobile store, and thereby causing damages. After the original arraignment on the Criminal Mischief case, a CPL § 730.30 exam was ordered and defendant was found unfit to proceed. He was ordered into the custody of the Commissioner of Mental Hygiene for treatment. He was later found fit to proceed and returned to court. Subsequently, defendant pleaded guilty to Criminal Mischief in the Fourth Degree (an A misdemeanor) and was sentenced to 3 years probation with a condition to complete a mental health program.
The specifications on the VOP included a failure to attend two mental health programs and a new arrest for assault.
When produced before this Court, Mr. Fann shouted incoherently. Defense counsel requested a CPL § 730.30 exam. This Court ordered the examination. Mr. Fann refused to be interviewed for the examination. A second examination was ordered by this Court, and the defendant was found unfit to proceed. The Court ordered Mr. Fann into the custody of the Commissioner of Mental Hygiene for treatment.
This Court then informed both parties on the Fann case of the issue raised in the Brisken case, i.e. whether CPL § 730.50 required dismissal of the misdemeanor charges against Mr. Fann. After some discussion, a supervisor from the Queens District Attorney's office was contacted. The supervisor requested permission to have one prosecutor handle the motions on both cases. The Probation Department also wanted to file motions. A motion schedule was set by this Court.
CPL § 730.30 reflects the long-established principal that due process requires a defendant not be tried for a crime if that person is "incapacitated." The statute defines "incapacitated" as lacking the "capacity to understand the proceedings against [the defendant] or to assist in [the defendant's] own defense." ( CPL § 730.10(1) ). In essence, the statute ensures that the defendant should understand the charges, the role of all parties, be able to assist the defense attorney, and be able to testify at trial or a hearing, if appropriate.
CPL § 730.30 applies "at any time after a defendant is arraigned [...] and before the imposition of sentence." CPL § 730.30(1). From the specific language of the statute, it seems not to apply to post-conviction proceedings. Evidently, numerous courts previously held the statute did not apply to a VOP hearing. See Newcomb v. N.Y. State Bd. of Parole, 88 A.D.2d 1098, 1099, 452 N.Y.S.2d 912 (3rd Dept.1982), lv. denied 57 N.Y.2d 605 (1982), cert. denied 459 U.S. 1176, 103 S.Ct. 828, 74 L.Ed.2d 1023 (1983), See also People ex rel. Porter v. Smith, 71 A.D.2d 1056, 420 N.Y.S.2d 817 (4th Dept.1979).
However, in Lopez v. Evans, the First Department held that due process required that a defendant be "fit" and "competent" to proceed on a parole hearing. 104 A.D.3d 105, 110, 957 N.Y.S.2d 59 (1st Dept.2012). The First Department held that due process did not permit a parole revocation hearing to commence against a defendant who is incapacitated. That Court urged statutory guidance by the legislature on this issue. Matter of Lopez v. Evans, 104 A.D.3d 105, 109, 957 N.Y.S.2d 59 (1st Dept.2012) () The First Department agreed with, and extensively quoted, the holdings by Courts in Indiana ("Without competency, the minimal due process rights guaranteed to probationers at probation revocation hearings would be rendered useless") and Ohio ("the effectiveness of the minimal [due process] standards enumerated in Morrissey [...] may be rendered null if the defendant is not competent to understand and to participate in or to assist counsel in participating in the proceedings"). See Donald v. State, 930 N.E.2d 76, 80 (Ind.Ct.App.2010), and State v. Qualls, 50 Ohio App.3d 56, 58, 552 N.E.2d 957 (1988).
Only a year later, in 2013, the Appellate Term, 2nd Department, in People v. Concepcion, extended this due process protection to a defendant facing a VOP hearing. 41 Misc.3d 1, 972 N.Y.S.2d 818 (2013). The court held that "the considerations underlying the determination in Lopez are equally applicable to probation violation proceedings and that (due process requires) an alleged violation of probation may not be adjudicated while a defendant is incompetent." People v. Concepcion, 41 Misc.3d 1, 972 N.Y.S.2d 818 (2nd Dept.2013). The Appellate Term held that a CPL § 730.30 exam to determine defendant's fitness to proceed is appropriate in a post-conviction proceeding on a VOP. This is true even though the language of the CPL § 730.30 statute specifically applies only to pre-judgment (pre-conviction) settings. Prior to this, only lower courts had endorsed this view. See In re Tompkins, 146 Misc.2d 754, 553 N.Y.S.2d 69, Montgomery County Court, 1990.
Both defense counsels argue that since Concepcion authorizes a CPL § 730.30 exam to determine fitness to proceed in the post-conviction context of a VOP, then the provisions of CPL § 730.40 and CPL § 730.50 should also apply after a finding of defendant's unfitness. This would require the court to dismiss the misdemeanor charges against the defendant even though this is a post-conviction finding.
The Prosecution and the Probation Department argue that CPL § 730.40 and CPL § 730.50 only apply to pre-judgment situations, not post-conviction procedures, by the language of the statutes. They argue that Concepcion should not be extended to these statutes. They also argue that conditions of probation (such as orders of protection, drug and sex offender programs) as well as collateral consequences (such as Megan's Law sex offender registration) would all be cancelled or voided if...
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